Moore v. CHRONES, CV 03-9543-PSG (MAN).

• Decision Date: 14 January 2010
• Docket Number: No. CV 03-9543-PSG (MAN).,CV 03-9543-PSG (MAN).
• Court: U.S. District Court — Central District of California
• Parties: Larry B. MOORE, Petitioner, v. Lee Ann CHRONES, Warden, Respondent.

687 F.Supp.2d 1005

Larry B. MOORE, Petitioner,
v.
Lee Ann CHRONES, Warden, Respondent.

No. CV 03-9543-PSG (MAN).

United States District Court, C.D. California.

January 14, 2010.

687 F. Supp.2d 1016

Larry B. Moore, Delano, CA, pro se.

Susan S. Kim, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

PHILIP S. GUTIERREZ, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition and related documents filed by Petitioner, all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and the following documents filed by Petitioner on December 10, 2009: Objections to the Report and related Request to "Take Judicial" Notice of Lodging of Memorandum of Points and Authorities (collectively, the "Objections"); Motion Asking the Benefit of Liberal Construction; Application for Leave to Exceed the 25 Page Limitment sic ...¹; Notice of Hearing on Motion for Summary Judgment by Petitioner, Motion for Summary Judgment by Petitioner, and Affidavit of Petitioner Larry B. Moore in Support of Motion for Summary Judgment (collectively, the "Summary Judgment Motion"); and Notice to "Take Judicial" Notice of Lodging of Documents in Support of Petitioner's Objection to United States Magistrate Judge's Report and Recommendation and to His Motion for Summary Judgment ("Notice"). The Court has conducted a de novo review of those matters to which objections to the Report have been made.

The Court has reviewed the Summary Judgment Motion and related Notice. By the Summary Judgment Motion, Petitioner seeks summary judgment on several claims alleged in the First Amended Petition, as well as with respect to a host of additional claims that are not alleged in the First Amended Petition. The Summary Judgment Motion does not comply with Local Rule 56-1 and, thus, is procedurally improper. Moreover, Petitioner's attempt to raise numerous, and apparently unexhausted new claims, long after briefing has been completed, and through a summary judgment motion rather than through a 28 U.S.C. § 2254 habeas petition, is improper.

A district court has discretion, but is not required, to consider evidence or claims presented for the first time in Objections to a Magistrate Judge's Report and Recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir.2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.2000). To the extent the Summary Judgment Motion raises additional claims that are not alleged in the First Amended Petition, the Court exercises its discretion to decline to consider Petitioner's belatedly-raised claims. However, to the extent the Summary Judgment Motion raises arguments pertinent to the habeas claims alleged in the First Amended Petition and considered in the Report, the Court deems such arguments to constitute objections to the Report and has considered such arguments in conjunction with its consideration of Petitioner's Objections to the Report. Accordingly, the Summary

687 F. Supp.2d 1017

Judgment Motion is deemed to be DENIED as to both the claims alleged in the First Amended Petition and the newlyraised claims.

Having completed its review of the filings and records in this case, the Court accepts and adopts the Report and the findings of fact, conclusions of law, and recommendations therein. Accordingly, IT IS ORDERED that: (1) the First Amended Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.

LET JUDGMENT BE ENTERED ACCORDINGLY. REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARGARET A. NAGLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner, a California state prisoner, filed a habeas petition, pursuant to 28 U.S.C. § 2254, on December 30, 2003. On January 7, 2004, the Court dismissed the petition with leave to amend, because it failed to allege any grounds for relief. Petitioner thereafter filed a First Amended Petition ("Petition"), which set forth 30 claims. During the course of this action, Petitioner also filed four volumes of exhibits entitled "Notice to Take `Judicial' Notice of Lodging of Documents" (hereafter, "Pet. Lodg.").

Respondent moved to dismiss the Petition on the grounds that one claim was not cognizable and several other claims were unexhausted ("MTD"); Respondent also lodged pertinent portions of the state record ("Lodg."). On February 24, 2005, the United States District Judge to whom this case formerly was assigned¹ granted the MTD, in part, and denied the MTD, in part, and amended the Petition by dismissing Grounds Twenty-Four, Twenty-Five, Twenty-Seven through Twenty-Nine, four unexhausted subclaims of Ground Fifteen,² and six unexhausted subclaims of Ground Twenty-Two.³ (See Order of February 24, 2005, and underlying Report and Recommendation of October 25, 2004, at 15-16 and 18-19.)

Subsequently, Respondent filed a Return to the Petition and lodged additional portions of the state record ("Supp. Lodg."). Petitioner thereafter filed a twovolume Traverse.

687 F. Supp.2d 1018

Briefing is complete, and the matter is submitted and ready for decision. For the reasons set forth below, the Court recommends that the Petition be denied on the merits and dismissed with prejudice.

PRIOR PROCEEDINGS

On September 1, 2000, a Los Angeles Superior Court jury convicted Petitioner of one felony count of petty theft with a prior theft-related conviction (Cal.Penal Code § 666) and one felony count of possession of a controlled substance, i.e., heroin (Cal. Health & Safety Code § 11350(a)). (Supp. Lodg. No. 1, Clerk's Transcript ("CT") 156A-66.) In bifurcated proceedings, the trial court found "true" sentencing allegations that Petitioner had sustained two prior "strike" convictions within the meaning of California's Three Strikes Law (Cal.Penal Code §§ 667(b)-(i)) and 1170.12(a)-(d), and had served seven prior prison terms (Cal.Penal Code § 667.5). (CT 296-99; Supp. Lodg. No. 4, Reporter's Transcript ("2RT") 54-55, 71-74.) After reducing the "wobbler" petty theft count to a misdemeanor and striking the seven prior prison term one-year sentence enhancements, the trial court sentenced Petitioner for a total term of 25 years to life on the principal count of possession of heroin, concurrent to a six-month term for the petty theft count. (CT 300-02; 2RT 101-05.)

Petitioner appealed. (Lodg. Nos. 2-4.) The California Court of Appeal affirmed Petitioner's conviction and sentence by a reasoned opinion issued on September 12, 2002, 2002 WL 31029143. (Lodg. No. 5.) On November 20, 2002, the California Supreme Court summarily denied Petitioner's petition for review. (Lodg. Nos. 6-7.)

While his appeal was pending, Petitioner filed numerous requests for post-conviction relief in the trial court and the California Court of Appeal, including motions to vacate judgment, for resentencing, and to stay his sentence, as well as petitions for writs of habeas corpus, qua warranta, prohibition, and mandate. All were denied. (Lodg. Nos. 8-13, 15-25.) He also filed three habeas petitions in the California Supreme Court during the pendency of his appeal, and all were denied on procedural grounds. (See Lodg. Nos. 28-33.)

Following the conclusion of his appeal, Petitioner filed two further habeas petitions in the California Supreme Court. Both petitions were denied on a procedural ground. (Lodg. Nos. 34-38; Supp. Lodg. Nos. 6-8.)

SUMMARY OF THE EVIDENCE AT TRIAL

The Court has reviewed the record in this case, as well as the California Court of Appeal's summary of the evidence in its opinion on direct appeal. The state court's summary is consistent with the Court's own review of the record. Thus, the Court has quoted it below to provide an initial factual overview, and additional relevant portions of the trial record will be discussed as needed in connection with the Court's analysis of Petitioner's claims.⁴

687 F. Supp.2d 1019

Ronnie Chong is a general contractor. He collects scrap brass from his jobs and saves it in a box in his backyard for future recycling. He keeps a pair of old gloves on top of the box for handling the brass. At 11:20 a.m. on February 26, 1999, Chong heard someone in his backyard. When he came out of his house to investigate, he saw Petitioner pushing a shopping cart into his front yard; all of Chong's brass was in Petitioner's shopping cart. Petitioner also had the gloves. Chong confronted Petitioner, asking, "Where are you going with my stuff?" Petitioner replied, "This is mine," and kept moving. Chong grabbed the shopping cart with both hands to prevent Petitioner from taking the brass. Petitioner took a brass faucet spout from the shopping cart and swung it at Chong's wrist, barely missing him. Chong released the shopping cart, but kicked it over, spilling some of the brass onto the ground. Petitioner righted the shopping cart, which still contained some of Chong's brass, and ran away. Chong gave chase. Petitioner threw some pieces of brass at Chong as he ran; they did not hit Chong. Petitioner eventually escaped by jumping over a gate. Petitioner was forced to abandon the shopping cart, and Chong recovered his brass from it. However, Petitioner retained the gloves.

Three days later, Petitioner crossed the street in front of Chong's car. Chong recognized Petitioner and telephoned the police. Petitioner was pushing another shopping cart containing brass. Chong recognized his gloves in the shopping cart.

Police arrested Petitioner. Before he was advised of the charges,

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